KIRKLAND v. HALL (2007)

In an action to recover damages for personal injuries, the plaintiff appeals (1) from an order of the Supreme Court, Queens County (Schulman, J.), entered February 16, 2006, which granted those branches of the defendants' separate motions which were for summary judgment dismissing the complaint insofar as asserted against them, and (2), as limited by her brief, from so much of a judgment of the same court entered March 21, 2006, as, upon the order, dismissed the complaint.

ORDERED that the appeal from the order is dismissed;  and it is further,

ORDERED that the judgment is affirmed insofar as appealed from;  and it is further,

ORDERED that one bill of costs is awarded to the respondents.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a] [1] ).

The plaintiff allegedly was injured as she attempted to mount a horse.   The plaintiff had her left foot in the stirrup and, as she swung her right leg around the horse, the horse shifted and raised up on its hind legs, causing her to fall.

 The doctrine of primary assumption of the risk provides that “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” (Morgan v. State of New York, 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202;  see Taylor v. Massapequa Intl. Little League, 261 A.D.2d 396, 397, 689 N.Y.S.2d 523). The risks of falling from a horse or a horse acting in an unintended manner are risks inherent in the sport of horseback riding (see Eslin v. County of Suffolk, 18 A.D.3d 698, 699, 795 N.Y.S.2d 349;  Kinara v. Jamaica Bay Riding Academy, Inc., 11 A.D.3d 588, 783 N.Y.S.2d 636;  Becker v. Pleasant Val. Farms, 261 A.D.2d 427, 690 N.Y.S.2d 76;  Freskos v. City of New York, 243 A.D.2d 364, 663 N.Y.S.2d 174).   The assumption of risk doctrine also applies to any readily observable condition of the place where the activity is carried on (see Maddox v. City of New York, 66 N.Y.2d 270, 277, 496 N.Y.S.2d 726, 487 N.E.2d 553;  Bruno v. Town of Hempstead, 248 A.D.2d 576, 577, 670 N.Y.S.2d 864;  Diderou v. Pinecrest Dunes, 34 A.D.2d 672, 673, 310 N.Y.S.2d 572).

 Here, the defendants sustained their burden of demonstrating, prima facie, that the plaintiff assumed the risks inherent in mounting a horse, including those risks associated with any readily observable defect or obstacle such as the horse shifting, and any increased risk associated with mounting the horse near an obvious incline (see Hund v. Gramse, 5 A.D.3d 1036, 1038, 774 N.Y.S.2d 220;  see also Ciocchi v. Mercy Coll., 289 A.D.2d 362, 363, 735 N.Y.S.2d 144;  Torre v. City of Glen Cove, 259 A.D.2d 540, 541, 686 N.Y.S.2d 457;  Gahan v. Mineola Union Free School Dist., 241 A.D.2d 439, 441, 660 N.Y.S.2d 144).   In opposition, the plaintiff failed to raise a triable issue of fact.

The plaintiff's remaining contention regarding the alleged vicious propensities of the horse is without merit (see Tilson v. Russo, 30 A.D.3d 856, 859, 818 N.Y.S.2d 311).

Accordingly, the Supreme Court properly granted those branches of the defendants' separate motions which were for summary judgment dismissing the complaint insofar as asserted against them.